Hello everyone and welcome to this Ethics Alert Update which will discuss the recent (March 12, 2018) Statement of Interest filed by the United States Department of Justice arguing that The Florida Bar is not immune or exempt from antitrust under the Sherman Antitrust Act based upon the U.S. Supreme Court’s decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission. The case is TIKD Services LLC, v. The Florida Bar, et al., Case No. 1:17-cv-24103-MGC (U.S. District Court, Southern District of Florida-Miami Division). The Statement of Interest is available on the PACER federal document system here: https://www.pacer.gov/login.html (subscription required).
As I previously blogged, TIKD Services, LLC filed the federal lawsuit against The Florida Bar, the Ticket Clinic law firm, and other individuals in the U.S. District Court, Southern District of Florida on November 8, 2017. The TIKD app allows an individual who has received a traffic citation to upload a photo of the citation and pay a fixed fee and TIKD retains an attorney to represent that individual. If the individual receives points against his or her license, TIKD refunds the payment and pays the cost of the ticket. The business model is based on the fact that contested traffic tickets are often dismissed or a lower fine is assessed and, since TIKD deals in volume, it can charge a lower price than a lawyer who is separately retained by the individual.
The Florida Bar issued a staff opinion finding that lawyers who work with TIKD and similar programs could be in violation of Florida Bar disciplinary rules, including fee splitting and interference with the lawyer’s independent professional judgment. A complaint was filed with The Florida Bar by members of the law firm alleging that TIKD was engaging in the unauthorized practice of law (UPL). That complaint is currently pending and the Bar has recommended further proceedings.
TIKD then filed the federal lawsuit court alleging conspiracy, restraint of trade, tortious interference with business relationships, and antitrust violations. The defendants include The Florida Bar, attorney Mark S. Good, who founded The Ticket Clinic law firm, and other individuals. According to the federal Complaint, The Florida Bar advised TIKD that it was opening an unlicensed practice of law investigation into the company’s activities after the company was featured in a Miami Herald story and a few months later, attorneys with The Ticket Clinic threatened to report two of TIKD’s lawyers to The Florida Bar if they continued to work with TIKD.
A state lawsuit was filed and was settled; however, TIKD alleges in the federal Complaint that The Florida Bar and the Ticket Clinic law firm continued to make a “concerted effort” to put it out of business, and that the firm’s lawyers continued filing “baseless ethics complaints” against attorneys who represent TIKD customers.
A recent (February 21, 2018) Motion for Sanctions filed by the Ticket Clinic law firm alleged, inter alia, that The Florida Bar has immunity, which immunized the individual defendants, that the individuals have immunity on other grounds, that the lawsuit is frivolous on other grounds, and that the lawsuit should be dismissed and the Plaintiffs should be sanctioned.
On March 12, 2018, the U.S. Department of Justice filed a statement of interest stating that The Florida Bar is not immune from federal or state antitrust liability under the Sherman Act as an arm of the state based upon the U.S. Supreme Court’s 2015 decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission. According to the statement:
“The Florida Bar defendants assert, as one ground for their motion to dismiss, that they are entitled to protection against Sherman Act claims by the state-action doctrine of Parker v. Brown, 317 U.S. 341 (1943), without having to satisfy either the “clear articulation” or “active supervision” requirements of that doctrine. That position is incorrect. The Supreme Court’s most recent state-action decision, N. Carolina State Bd. of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015), clarified the state-action doctrine with respect to state agencies that regulate learned professions. It requires that the Bar, if “controlled by active market participants,” id. at 1114, must satisfy the clear articulation and active supervision requirements in order to obtain state-action protection.”
Bottom line: As I have previously blogged, this is one of the first cases filed in Florida (and possible in any jurisdiction) which directly alleges that a State Bar’s procedures violate the Sherman Antitrust Act in reliance upon the U.S. Supreme Court opinion in North Carolina State Board of Dental Examiners v. Federal Trade Commission. The Statement of Interest filed by the U.S. Department of Justice agrees with that analysis and argues that it is correct. Stay tuned…
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N. Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670